ACLU opposes time extension in Utah's same-sex recognition case

Four gay and lesbian couples asked a federal appeals court Tuesday to deny Utah extra time to appeal a judge's order requiring the state to offer spousal benefits to same-sex couples married in Utah.

The longer the appeal is dragged out, the couples' attorney said, the more harm will be done.

"There are families who face financial, emotional and dignitary harms every single day [Utah] refuses to recognize their marriages," wrote John Mejía, counsel for the American Civil Liberties Union of Utah, which represents the plaintiffs in this case. "These real concrete harms mitigate strongly against any further extensions in this case."

On Monday, the Utah attorney general's office asked the 10th Circuit Court of Appeals for a one-month extension of the Sept. 22 deadline set by the court for the state's appeal.

Giving the state until Oct. 22 to appeal the Evans v. Utah lawsuit would allow the state to better brief the court, the state argued, given the "factually and legally complex" nature of the case, and the fact that the attorneys involved have a busy workload.

But on Tuesday, the ACLU said that's not good enough.

"[Utah has] had since January of this year, when this case was filed, to deliberate about the issues presented here and have undoubtedly already done much of the required research and writing needed," Mejía wrote. "It also cannot be said that the defendants could not have foreseen the timing of the present briefing schedule to anticipate a need to shift resources and priorities."

The Evans case is the state's second legal battle over same-sex marriage to reach the 10th Circuit, which in June upheld U.S. District Court Judge Robert J. Shelby's historic decision in December on the Kitchen V. Herbert lawsuit that toppled Utah's ban on same-sex marriage, allowing gay and lesbian couples to wed in Utah for a brief period of 17 days.

After the nation's high court halted all same-sex marriages, giving the state a chance to appeal the ruling, Utah said its laws were returned to their "status quo" and it would be illegal for them to extend marital benefits to same-sex spouses.

But in May, U.S. District Judge Dale A. Kimball ordered Utah to do just that. The judge found that denying these couples spousal benefits was a violation of their Fourteenth Amendment rights to equal protection and due process.

"The State has placed plaintiffs and their families in a state of legal limbo with respect to adoptions, child care and custody, medical decisions, employment and health benefits, future tax implications, inheritance, and many other property and fundamental rights associated with marriage," Kimball wrote in his decision. "These legal uncertainties and lost rights cause harm each day that the marriage is not recognized."

This argument was used again in the motion filed early Tuesday by the ACLU.

A stay put in place by the U.S. Supreme Court blocked all movement toward doling out spousal benefits to married same-sex Utahns after Kimball and the 10th Circuit denied similar requests from the state. That stay will expire once the 10th Circuit has ruled on the lawsuit.

It's this indefinite hold that the ACLU said is hurting Utah families.

"While Plaintiffs' counsel understand the need for professional courtesy in agreeing to extension requests," Mejía wrote, "they are unable to do so when extensions will work tangible harm to their clients."

Utah has contended that allowing same-sex couples to apply for, and receive, marital benefits would render the lawsuit moot and undermine the judicial process to which the state is entitled.

Federal appeals court Judge Paul J. Kelly, who wrote a dissent when his colleagues Judges Carlos F. Lucero and Jerome A. Holmes refused to halt the granting of benefits to same-sex spouses, has asserted that the courts have been "running roughshod over state laws which are currently in force."

"It is disingenuous to contend that the state will suffer no harm if the matter is not stayed," he wrote.

Meanwhile, the state also continues to defend its right to define marriage as a union between one man and one woman by asking the U.S. Supreme Court to take up its Kitchen v. Herbert case — its last recourse in Utah's effort to revive its ban on same-sex marriage, Amendment 3, which Utah voters passed in 2004.

Virginia and Oklahoma have filed similar petitions, and more states are expected to file for a hearing before the nation's high court before the year's end.

The U.S. Supreme Court is on break until October. When the justices reconvene they will decide which case — if any — they may take up on the issue of state same-sex marriage legislation.

Utah has said if the U.S. Supreme Court overturns lower court rulings that found bans on same-sex marriage are in violation of the U.S. Constitution, it would do "everything possible" to enforce its laws — that means effectively nullifying the more than 1,200 same-sex marriages that took place during the 17-day window.

mlang@sltrib.com

Twitter: @Marissa_Jae